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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Harold Gibson, Respondent/Petitioner,

v.

State of South Carolina, Petitioner/Respondent.

ON WRIT OF CERTIORARI

Appeal From York County

Robert L. McFadden, Trial Judge

John C. Hayes, III, Post-Conviction Judge

Opinion No. 24914

Submitted January 21, 1999 - Filed March 8, 1999

AFFIRMED IN PART; REVERSED IN PART

Tara Dawn Shurling, of Columbia, for

Respondent/Petitioner.

Attorney General Charles M. Condon, Deputy

Attorney General John W. McIntosh, Assistant

Deputy Attorney General Teresa A. Knox, and

Assistant Attorney General Matthew M. McGuire, all

of Columbia, for Petitioner/Respondent.

WALLER, A.J.: Respondent-Petitioner Harold Gibson (Gibson)

pleaded guilty to voluntary manslaughter and was sentenced to twenty-one

years in prison. He did not appeal the conviction or sentence.

p.11

Gibson filed a post-conviction relief (PCR) application dated March

2, 1995. A circuit judge granted Gibson a new trial based on a Brady1 violation,

but rejected Gibson's argument the prosecutor had committed misconduct.

Petitioner-Respondent (the State) and Gibson contend the judge erred. We

affirm in part and reverse in part.

FACTS

The State accused Gibson of murdering a long-time friend, Bobby M.

Griffin (victim), in a late-night shooting at Gibson's bar in 1989. From the

beginning, Gibson claimed the shooting was an accident. He and other witnesses

told police he fired a nine-mm automatic handgun into the wall of his bar to

subdue the victim, who had been drinking, and convince everyone to leave.

Gibson told police everyone left, then the victim went back inside the bar to

confront Gibson again. Gibson suspected the victim was armed. Gibson, holding

the handgun only by the butt and not the trigger, slapped the victim on the

forehead with the gun. The gun fired; a bullet struck the victim in the forehead

and killed him.

The key evidence consisted of the testimony of two alleged

eyewitnesses, Robert Peterson and Anna Lanier Ross. Peterson told police he

followed the victim and Gibson back into the bar after Gibson had ordered

everyone to leave. Peterson corroborated Gibson's version of events, particularly

the statements that the gun went off after Gibson struck Griffin with it. Ross,

who was the victim's girlfriend, told police she went to a window and looked

inside after the victim went back into the bar. She claimed she "saw [Gibson]

point the pistol at [the victim] and shoot him."

Four other witnesses told police that Ross either was sitting in her

car or standing next to it when the fatal shot was fired. She ran inside only after

the shot was fired to find the victim dying on the floor, according to the

witnesses.

Gibson filed a discovery motion pursuant to Brady and Rule 5,

SCRCrimP. Gibson pleaded guilty after a jury had been selected, which resulted

in the prosecutor describing the statements of Peterson and Ross to the judge.

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The prosecutor said Peterson told police the gun discharged after Gibson struck

the victim with it. the prosecutor said that "another witness, [Ross], was

outside and indicates that she saw a different version with the defendant having

pointed the gun at the victim's head." The prosecutor did not reveal any changes

Ross had made in her story or any misgivings about the veracity of her potential

testimony. Petitioner pleaded guilty to voluntary manslaughter after answering

the usual questions regarding his constitutional rights.

In February 1992, the victim's family sued an insurance company

in an effort to collect under an accidental death provision of the victim's life

insurance policy. Gibson learned for the first time through the testimony of

investigating officers that they and the prosecutor had visited the crime scene

with Ross. Gibson also learned the officers did not believe Ross's statement that

she saw the shooting through the window because her view would have been

blocked by curtains and a Donkey Kong video game.

Ross testified in the civil trial that she opened the door of the bar to

see Gibson point the gun at the victim and shoot him. Three witnesses told the

jury the same thing they had told police during the investigation, i.e., that Ross

was either in or beside her car when the shooting occurred and could not have

seen what happened inside the bar. In addition, it was raining and sleeting that

night, and the door of the bar was equipped with a device that automatically

closed it.

Gibson testified in the civil trial that he repeatedly tried to calm the

victim, who had been his friend and a fellow logging truck driver for twenty

years, and make him leave the bar peacefully. When the victim came back

inside the bar, Gibson believed he was armed because the victim kept his hand

down by his side. Gibson grabbed his handgun by the butt and hit the victim on

the left side of his head, hoping to "knock some sense into him." He was shocked

when the gun discharged because he had not pulled the trigger. Gibson held the

victim in his arms until he died a few minutes later.

At the PCR hearing, petitioner's trial attorney testified he visited

the crime scene with Gibson. The attorney was fully prepared to impeach Ross

in an effort to discredit her claim that she had witnessed the shooting through

the window. He recognized, however, that determining how the shooting

occurred was a factual issue for the jury. The attorney testified he knew police

and prosecutors did not believe Ross's statements were credible, but did not

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recall receiving any information that the prosecutor had taken Ross to the scene

to discuss her statements. In his estimation, the investigating officers and the

prosecutor simply confirmed his belief that Ross was not credible.

The trial attorney's co-counsel testified he visited the scene with the

attorney and Gibson to collect evidence to discredit Ross's claims. At the time

of Gibson's guilty plea, the co-counsel did not know police and the prosecutor did

not believe Ross's claims; nor did he know they had taken Ross to the scene to

confront her.

The prosecutor testified that, after confronting Ross at the scene,

there

came a time when I was convinced that she could not

see what she said she saw from where she said she saw

it. She said she was standing at a window looking in

the bar. And we looked at some pictures and there was

a Donkey [Kong] machine in front of that window when

the pictures were taken of the scene that night and we

determined that she could not have seen through that

window. And I confronted her with that and she never

denied seeing what she said she saw in the bar. She

then began to hedge on where she was standing. She

said, well, maybe I wasn't there, maybe I was at the

door or something to that effect. She still said she saw

what she saw and she never wavered on that.

The prosecutor testified he told Gibson's attorney that Ross could not

have seen what she claimed. The prosecutor did not recall whether he also told

Gibson's attorney that he had reached his conclusion after confronting Ross

at the scene and hearing her change her story. When pressed further, the

prosecutor testified he could not recall exactly when Ross changed her story. He

did not document the changes to Ross's previous statement in writing. If the

case went to trial, the prosecutor intended to offer Ross's testimony, then place

an investigator from his office on the stand to testify that a person could not see

inside the bar through that window.

Two investigating officers testified, as they had at the civil insurance

trial, that they did not believe Ross could have seen the shooting through the

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window. They corroborated the prosecutor's testimony about confronting Ross

at the scene and her continued insistence that she saw the shooting. However,

the officers did not recall Ross ever changing her statement to say she must have

seen the shooting through the door. Neither officer told Gibson's attorney

verbally or in any written report given to the attorney that they had taken Ross

to the scene.

Gibson testified he struck the victim with the gun and it fired

accidentally. He believed the prosecutor planned to use Ross's testimony at trial.

He knew Ross was lying, but had no way of proving it. His attorney said he

thought he could prove Ross was lying, but no one ever told him that Ross had

changed her statement to say she must have se en the shooting through the door

after the prosecutor and police confronted her at the scene. Nor did anyone ever

tell Gibson that the prosecutor and police were convinced she was lying, Gibson

testified. If he had known those facts, he would have stood trial instead of

pleading guilty, Gibson testified.2

The PCR judge, after considering oral arguments as well as

memoranda from both parties, ruled the State had violated Brady by failing to

fully disclose all material exculpatory or impeachment evidence regarding Ross's

statements. The prosecutor should have disclosed the visit to the scene with

Ross and the material change in her testimony. The judge ruled that

[t]his information was material regardless of defense

counsel's independent knowledge of the physical

parameters of the crime scene. Defense counsel could

that Gibson's attorney told them that Ross's testimony would be "very

damaging." The attorney also told them that Peterson, the other eyewitness,

would not be credible because he had suffered a stroke and short term memory

loss.

Two pathologists, including the one who performed the autopsy, testified

they found nothing that would conflict with Gibson's version of events. Gibson's

handgun did not have safeguards used on newer models to prevent such

accidental firings, although Gibson was unable to find an expert who could

definitively testify the gun accidentally fired as he said it did.

p.15

have challenged [Ross's] veracity merely on the basis of

the measurements he had taken himself. However, the

withheld information provided an infinitely stronger

basis for challenging the prosecution's key witness and

for exculpating the defendant . . . . Only in its full form

did the information constitute evidence with

exculpatory or impeachment value. By contrast, the

information actually provided, that the prosecution

believed [Ross] could not have seen through the

window, was inadmissible into evidence and thus,

inherently - lacking in exculpatory or impeachment

value. . . . [T]here is a grave difference between

thinking you can impeach a witness and knowing that

the State has established that the witness's sworn

statements are untrue.

The PCR judge set aside Gibson's guilty plea and granted him a new trial based

on the Brady violation. The judge also ruled the prosecutor had not committed

misconduct.

ISSUES

1. Does probative evidence support the PCR judge's

ruling that Gibson is entitled to a new trial on

the basis of a Brady violation?

2. Does probative evidence support the PCR judge's

ruling that the prosecutor did not commit

misconduct?

1. BRADY VIOLATION

The State contends the PCR judge erred in granting Gibson a new

trial on the basis of a Brady violation. The State asserts that Gibson's attorney

believed he could effectively impeach Ross and had told Gibson so. "Based on the

testimony at the PCR hearing, it is clear that the outcome of the proceedings

would not have changed; [Gibson] would not have proceeded to trial even if the

solicitor specifically informed defense counsel that the State's witness had been

taken to the crime scene," the State argues. Gibson pleaded guilty because he

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knew he would receive no less than a voluntary manslaughter conviction if he

stood trial, the State contends. We disagree.

A defendant who pleads guilty usually may not later raise

independent claims of constitutional violations. See Rivers v. Strickland, 264

S.C. 121, 124, 213 S.E.2d 97, 98 (1975) (stating "[t]he general rule is that

a plea of guilty, voluntarily and understandingly made, constitutes a waiver of

nonjurisdictional defects and defenses, including claims of violation of

constitutional rights prior to the plea"). However, "a defendant's decision

whether or not to plead guilty is often heavily influenced by his appraisal of the

prosecution's case." Sanchez v. United States, 50 F.3d 1448, 1453 (9th Cir.

1995); accord Gusting v. State, 325 S.C. 123, 127-28, 480 S.E.2d 444, 446 (1997)

( "waivers of constitutional rights not only must be voluntary but must be

knowing, intelligent act done with sufficient awareness of the relevant

circumstances and likely consequences").

When a defendant lacks knowledge of material evidence in the

prosecution's possession, the waiver of constitutional rights cannot be deemed

knowing and voluntary. Sanchez, 50 F.3d at 1453; accord White v. United

States, 858 F.2d 416, 420-22 (8th Cir. 1988) (adopting same principle); Miller v.

Angliker, 848 F.2d 1312,1319-20 (2d Cir. 1988) (adopting same principle); Royal

v. Netherland, 4 F. Supp.2d 540, 566 (E.D. Va. 1998) (stating same principle);

New York v. Burney, 642 N.Y.S.2d 990, 992 (N.Y. Sup. 1996) (collecting cases

and noting the federal trend permitting defendants to pursue such claims even

though Brady and its progeny do not address the withholding of Brady material

prior to the entry of a guilty plea).

"The government's obligation to make such disclosures [of Brady

material] is pertinent not only to an accused's preparation for trial but also to his

determination of whether or not to plead guilty. The defendant is entitled to

make that decision with full awareness of favorable material evidence known to

the government." United States v. Avellino, 136 F.3d 249, 255 (2d Cir.1998).

Accordingly, Gibson may challenge the voluntary nature of his guilty plea in a

PCR action by asserting an alleged Brad violation. E.g., Carter v. State, 329

S.C. 355) 495 S.E.2d 773 (1998) (illustrating an applicant may challenge the

voluntary nature of a guilty plea in a PCR action).

A Brady claim is based upon the requirement of due process. Such

a claim is complete if the accused can demonstrate (1) the evidence was

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favorable to the accused, (2) it was in the possession of or known to the

prosecution,3 (3) it was suppressed by the prosecution, and (4) it was material

to guilt or punishment. Kyles v.Whitle , 514 U.S. 419, _, 115 S.Ct. 1555,

1565-69,131L.Ed.2d 490, 505-10 (1995); Brady, 373 U.S.at 87, 83 S.Ct.at1196,

10 L.Ed.2d at 218; State v. Von Dohlen, 322 S.C. 234, 241, 471 S.E.2d 689, 693

(1996). This rule applies to impeachment evidence as well as exculpatory

evidence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87

L.Ed.2d 481, 490 (1985); State v. Von Dohlen, supra.

Gibson's case falls into the third of three distinct categories of Brady

violations identified by the Supreme Court in United States v. Agurs, 427 U.S.

971 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). Those categories are (1) cases that

include nondisclosed evidence of perjured testimony about which the prosecutor

knew or should have known, (2) cases in which the defendant specifically

requested the nondisclosed evidence, and (3) cases in which the defendant made

no request or only a general request for Brady material. Id. at 103-107, 96 S.Ct.

at 2397-99, 49 L.Ed.2d at 349-52. Gibson's pre-trial Brady motion requested

[a]ll information of whatever form . . . which tends to exculpate the defendant

either through the potential impeachment of any State witness and all

information of whatever form . . . which may lead to evidence which tends to

exculpate the defendant . . . or impeaching the credibility of any potential

State's witness. . . ."

In "specific request" and "general- or no-request" situations,

"favorable evidence is material, and constitutional error results from its

suppression by the government, if there is a reasonably probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

the relevant facts of a case in order to decide what information to disclose as

exculpatory or impeachment evidence. Kyles v. Whitle 514 U.S. 419, _, 115

S.Ct. 15552 1567-68, 131 L.Ed.2d 490, 508 (1995) (prosecutor can establish

procedures and regulations to carry the State's burden of disclosure and to

ensure communication of all relevant information on each case to every lawyer

who deals with it); accord State v. Von Dohlen, 322 S.C. at 240, 471 S.E.2d at

693 (information known to investigative agencies may be imputable to

prosecutor, but prosecutor has no duty to go on fishing expedition to find

exculpatory or impeachment evidence).

p.18

been different . . . . A reasonable probability of a different result is accordingly

shown when the Government's evidentiary suppression undermines confidence

in the outcome of the trial." Kyles v. Whitley, 514 U.S. at _, 115 S.Ct. at 1565

662 131 L.Ed.2d at 505-06 (internal quotes omitted); accord State v. Von Dohlen,

322 S.C. at 241, 471 S.E.2d at 693.4 The court must consider the suppressed

evidence collectively, not on an item-by-item basis. Kyles v. Whitle , 514 U.S.

at 115 S.Ct. at 1567, 131 L.Ed.2d at 507.

The standard for deciding the materiality of a Brady violation in the

context of a guilty plea is a novel issue in South Carolina. We adopt the

standard applied by other courts, which essentially is the same standard that is

applied in the context of a. trial: A Brady violation is material when there is a

reasonable probability that, but for the government's failure to disclose Brady

evidence, the defendant would have refused to plead guilty and gone to trial.

See Sanchez v. United States, 50 F.3d at 1454; Banks v. United States, 920 F. Supp.

688, 692 (E.D. Va. 1996) (noting that Second, Sixth, Eighth, and Ninth Circuit

Courts of Appeal have adopted such a view).5

The overriding theme of the Brady cases is the emphasis the

Supreme Court has placed on the prosecutor's responsibility for fair play. In

close cases, "the prudent prosecutor will resolve doubtful questions in favor of

disclosure. This is as it should be. Such disclosures will serve to justify trust in

prosecutor's use of perjured testimony, must clear a lower hurdle in proving

materiality. In such situations, "a conviction obtained by the knowing use of

perjured testimony is fundamentally unfair, and must be set aside if there is any

reasonable likelihood that the false testimony could have affected the outcome

of the jury." United States v. Bagle, 473 U.S. at 678, 105 S.Ct. at 3381-82, 87

L.Ed.2d at 492. That category is not at issue in Gibson's case.

5 The Sanchez standard also is similar to the ordinary PCR standard for

determining whether a guilty plea should be set aside due to the ineffective

assistance of counsel. E.g., Alexander v. State, 303 S.C. 539, 402 S.E.2d 484

(1991) (where there has been a guilty plea, the applicant must prove counsel's

representation fell below the standard of reasonableness and, but for counsel's

unprofessional errors, there is a reasonable probability he would not have

pleaded guilty and would have insisted on going to trial) (citing Hill v. Lockhart,

474 U.S. 52~ 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)).

p.19

the prosecutor as the representative . . . of a sovereignty . . . whose interest . . .

in a criminal prosecution is not that it shall win a case, but that justice shall be

done. And it will tend to preserve the criminal trial, as distinct from the

prosecutor's private deliberations, as the chosen forum for ascertaining the truth

about criminal accusations." Kyles v. Whitley, 514 U.S. at -, 115 S.Ct. at

1568, 131 L.Ed.2d at 509 (quotes omitted) (citing Berger v. United States, 295

U.S. 78) 88) 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935)).

We hold the PCR judge correctly ruled that the prosecutor violated

Brady by failing to disclose fully the change in Ross's testimony and the on-the

scene confrontation. See Cherry v. State, 300 S.C. 115, 386 S.E.2d 624 (1989)

(appellate court must affirm PCR judge's findings when they are supported by

any evidence of probative value).

The record reveals that the prosecutor told Gibson's attorney that

Ross could not have seen what she claimed, i.e., that Gibson pointed the gun at

the victim and fired. The investigating officers told Gibson's attorney they had

reached the same conclusion. Gibson knew his attorney believed he could

impeach Ross's testimony.

Neither the prosecutor nor the detectives, however, disclosed to

Gibson that Ross had changed her statement to say that, even if she had not

seen the shooting from the window, she must have seen it through the door. Nor

did they reveal the on-the-scene confrontation that prompted Ross to change her

previous statement.

In applying the Brady analysis, first, the withheld evidence was

favorable to Gibson because it was additional proof of Ross's alleged lies.

Second, the evidence was in the possession of and known to the prosecutor.

Third, the prosecutor suppressed the evidence by failing to reveal it.

Finally, as to the prong upon which Brady violations often rise or

fall, we agree with the PCR judge's ruling that the withheld evidence was

material. It is reasonably probable that, had the prosecutor revealed the

suppressed information, Gibson would have chosen to stand trial instead of

pleading guilty. Instead of merely hoping he could impeach Ross as a liar,

Gibson would have known about Ross's inconsistent statements and the

revealing on-the-scene confrontation. He likely could have challenged the

prosecutor's effort to put her on the stand as the impermissible solicitation of

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perjured testimony. Compare Banks v. United States, 920 F. Supp. at 691-93

(finding it was reasonably probable that defendant would have stood trial if he

had known the government's key witness had enjoyed conjugal visits with his

wife and girlfriend in government offices) with United States v. Avellino, 136

F.3d at 254-59 (finding it was not reasonably probable that defendant would

have stood trial if prosecutors had given him additional undisclosed evidence

about informant's narcotics trafficking, where prosecutors already had turned

over extensive information about informant's atrocious criminal record that

included nine murders, narcotics offenses, extortion, hijacking, and burglary).

We also agree with the PCR judge's ruling that the information

actually provided, the prosecutor's conclusion that Ross could not have seen

what she claimed, was of little help to Gibson. That conclusion inherently lacked

exculpatory or impeachment value because it was not admissible at trial. The

Brady analysis focuses upon facts known to the State, not the prosecutor's

conclusions.

2. PROSECUTORIAL MISCONDUCT

Gibson contends the PCR judge erred in ruling that, although the

prosecutor committed a Brady violation, he did not commit misconduct. The

prosecutor described Ross's potential testimony, which he knew to be a lie, to the

judge at the guilty plea without revealing his reservations about Ross's veracity,

his visit to the scene with her, or inconsistencies in her statements, Gibson

asserts. Any use of Ross's testimony at trial would have constituted a use of

perjured testimony in violation of ethical rules, Gibson argues.

As explained above, the prosecutor committed a Brady violation by

not disclosing certain evidence to Gibson. A Brady violation is one type of

prosecutorial misconduct. It is misconduct of a different type than, for instance,

an attempt to introduce inadmissible evidence, tamper with the jury, or some

other inappropriate action. E.g., United States v. Alderdyce, 787 F.2d 1365,

1370 (9th Cir. 1986) (finding no evidence of prosecutorial misconduct giving rise

to a Brady violation); Buffington v. Copeland, 687 F. Supp. 1089, 1095-96 (W.D.

Tex. 1988) (distinguishing Brady violations from other types of prosecutorial

misconduct in which, for example, a prosecutor tries to inject prejudice into a

trial by introducing inadmissible evidence or making inappropriate opening

statements or closing arguments).

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It does not matter whether the prosecutor's misconduct in failing to

reveal Brady evidence is due to negligence or an intentional act because a court

may find a Brady violation irrespective of the good faith or bad faith of the

prosecutor. "Brady is based on a sense of fairness, and a belief that society gains

when a defendant is accorded a fair trial. The focus is not on the misconduct of

the Prosecutor, but on the fairness of the procedure." New York v. Jackson, 593

N.Y. S. 2 d 410, 417 (N.Y. Sup. Ct. 1992). As the Supreme Court explained in

Brady, "[t]he principle . . . is not punishment of society for misdeeds of a

prosecutor but avoidance of an unfair trial to the accused. Society wins not only

when the guilty are convicted but when criminal trials are fair[.]" Brady, 373

U.S. at 87, 83 S.Ct. at 1197, 10 L.Ed.2d at 218. "If the suppression of evidence

results in constitutional error, it is because of the character of the evidence, not

the character of the prosecutor." United States v. Agurs, 427 U.S. at 110, 96

S.Ct. at 2401, 49 L.Ed.2d at 353.

The PCR judge's ruling in this, case is inconsistent because the

prosecutor committed misconduct by violating Brady. Accordingly, we reverse

the judge's ruling on this issue.6 We note that when a Brady violation is found,

it is unnecessary for the judge to make an additional ruling on prosecutorial

misconduct unless the prosecutor engaged in other types of misconduct not

related to the Brady violation.

CONCLUSION

We affirm the PCR judge's decision to set aside Gibson's guilty plea

and grant him a new trial based on the Brady violation. We reverse the PCR

judge's erroneous ruling on the issue of prosecutorial misconduct.

AFFIRMED IN PART; REVERSED IN PART.

FINNEY, C.J., TOAL, MOORE, and BURNETT, ii., concur.

not necessarily synonymous with misconduct as defined in various ethical rules

that govern lawyers. See the Rules of Professional Conduct contained in Rule

407, SCACR. The focus of the Brady analysis is upon the fairness of the

procedure followed in a particular case. The focus of the ethical rules is upon a

lawyer's alleged misconduct, an issue that is not before us.

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